Wright & Wright & Anor (SSAT Appeal)

Case [2009] FMCAfam 979

FEDERAL MAGISTRATES COURT OF AUSTRALIA

WRIGHT & WRIGHT & ANOR (SSAT APPEAL) [2009] FMCAfam 979

CHILD SUPPORT – Departure from assessment – special circumstances – income or other financial resources – capacity to borrow not generally considered income or a financial resource.

CHILD SUPPORT – Departure from assessment – other matters – justice and equity – requirement to consider necessary commitments for self support.
Bankruptcy Act1966, Part XI
Family Law Act 1975, ss.79 & 117
Federal Proceedings (Costs) Act 1981
Child Support Assessment Act 1989, ss.4 & 117(4)
Charnock & Bullions (SSAT Appeal) [2008] FMCAfam 36
Collins & Collins (1977) FLC ¶90-286
Gollings & Scott [2007] FamCA 397
Gyselman& Gyselman [1991] FamCA 93; (1992) FLC ¶92-279; (1991) 15 Fam LR 219
Hallinan v Witynski [1999] FamCA 1127; (1999) FLC ¶98-009; (1999) 25 Fam LR 647
Hides and Hatton [1997] FamCA 28; (1997) FLC ¶92-759; (1997) 21 Fam LR 855
La Costa & La Costa [2007] FamCA 1176
Magee & Magee [2008] FMCAfam 856
Milankov & Milankov [2002] FamCA 195; (2002) FLC ¶93-095; (2002) 28 Fam LR 514
Parrish & Torrey (SSAT Appeal) [2009] FMCAfam 274; (2009) 41 Fam LR 236.
PJ & Child Support Registrar (SSAT Appeal) [2007] FMCAfam 829; (2007) 38 Fam LR 31
Ross & McDermott [1998] FamCA 134, (1998) FLC ¶98-003
Tyagi & Meares (SSAT Appeal) [2008] FMCAfam 886; (2008) 39 Fam LR 604
Walters & Walters [1986] FamCA 8;(1986) FLC ¶91-733; (1986) 10 Fam LR 1006
Applicant: MR WRIGHT
First Respondent: MS WRIGHT
Second Respondent: CHILD SUPPORT REGISTRAR
File Number: MLC5659 of 2009
Judgment of: Riethmuller FM
Hearing date: 19 August 2009
Date of Last Submission: 19 August 2009
Delivered at: Melbourne
Delivered on: 14 September 2009

REPRESENTATION

Counsel for the Applicant: Mr Potter
Solicitors for the Applicant: Goddard Elliott
Counsel for the Respondents: Ms Buchanan
Solicitors for the Respondents: Victoria Legal Aid

ORDERS

  1. That the appeal be allowed;

  2. That the decision of the SSAT be set aside;

  3. That the application be remitted to the SSAT to be heard and determined according to law;

  4. That there be no order as to costs.

IT IS NOTED that publication of this judgment under the pseudonym Wright & Wright is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

MLC5659 of 2009

MR WRIGHT

Applicant

And

MS WRIGHT

First Respondent

CHILD SUPPORT REGISTRAR

Second Respondent

REASONS FOR JUDGMENT

  1. This is an appeal from a decision of the Social Security Appeals Tribunal dated 29 May 2005 with respect to the child support assessment of the parties.

  2. The Tribunal set the child support income amount for the Appellant at $80,170 per annum for the period of 25 June 2008 to 31 December 2009 and set the Respondent’s child support income amount at $47,218 per annum. In addition, for the six months of 25 June 2008 to


    31 December 2008, the Tribunal increased the annual rate of child support…

Continue reading Wright & Wright & Anor (SSAT Appeal)

Sign in free to access the full text

Details
AGLC
Wright & Wright & Anor (SSAT Appeal) [2009] FMCAfam 979
Case
[2009] FMCAfam 979
Decision Date

CaseChat Overview and Summary

The appellants, Wright and Wright, appealed a decision made by the Social Security and Tax Appeals Tribunal (SSAT) concerning child support payments. The tribunal had determined the amount of child support to be paid by the appellants to the respondent, and the appellants sought to challenge this decision on the grounds that it did not adequately consider their financial circumstances. The appeal was heard in the Federal Circuit Court of Australia.

The legal issues in this appeal centred on the tribunal's departure from the assessment of child support and whether there were special circumstances warranting a departure. The appellants argued that the tribunal had failed to consider their capacity to borrow as a financial resource, and that the tribunal should have taken into account their necessary commitments for self-support. The appellants also submitted that the tribunal had not acted equitably by not considering these factors in its decision.

The court found that the tribunal had erred in not considering the appellants' capacity to borrow as a financial resource and in not taking into account their necessary commitments for self-support. The court held that while capacity to borrow is not generally considered income or a financial resource, it could be taken into account in special circumstances. The court also found that the tribunal had not adequately considered the principle of equity in making its decision, as it had not taken into account the appellants' necessary commitments for self-support. The court concluded that the tribunal's decision was therefore flawed and remitted the matter back to the SSAT for rehearing and determination.

The orders of the court were that the appeal be allowed, the decision of the SSAT be set aside, the application be remitted to the SSAT for rehearing and determination, and that there be no order as to costs.

Orders

Orders of the court

1.

That the appeal be allowed;

2.

That the decision of the SSAT be set aside;

3.

That the application be remitted to the SSAT to be heard and determined according to law;

4.

That there be no order as to costs.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.